State v. Bol

Supreme Court of Nebraska

July 22, 2016

State of Nebraska, appellee,v.Angelo M. Bol, appellant.

1.Pleas. To support a finding that a defendant
has entered a guilty plea freely, intelligently, voluntarily,
and understandingly, a court must inform a defendant
concerning (1) the nature of the charge, (2) the right to
assistance of counsel, (3) the right to confront witnesses
against the defendant, (4) the right to a jury trial, and (5)
the privilege against self-incrimination. The record must
also establish a factual basis for the plea and that the
defendant knew the range of penalties for the crime charged.

2.
Trial: Interpreters. The appointment of an
interpreter for an accused at trial largely rests in the
trial court's discretion.

3. __:
__ .A trial court does not abuse its discretion by failing to
appoint an interpreter if the record shows that the defendant
had a sufficient command of the English language to
understand questions posed and answers given.

4.
Trial: Witnesses: Interpreters. Generally, a
defendant is entitled to an interpreter only if he or she
timely requests one, or it is otherwise brought to the trial
court's attention that the defendant or a witness has a
language difficulty that may prevent meaningful understanding
of, or communication in, the proceeding.

5.
Effectiveness of Counsel: Proof: Appeal and
Error. To establish ineffective assistance of
counsel, a defendant must show that his or her counsel's
performance was deficient and that counsel's deficiency
prejudiced the defendant.

6.
Effectiveness of Counsel: Evidence: Appeal and
Error. An appellate court addresses an ineffective
assistance claim raised on direct appeal only if the record
allows the court to adequately review the question without an
evidentiary hearing.

[294
Neb. 249] Appeal from the District Court for Buffalo County:
William T. Wright, Judge.

Angelo
M. Bol pleaded no contest to first degree murder. The court
accepted Bol's plea and sentenced him to life
imprisonment. On appeal, Bol argues that his plea was
involuntary and that the court should have appointed him an
interpreter because he had trouble understanding the English
language. We conclude that Bol could comprehend the
proceedings and communicate in English. We therefore affirm.

BACKGROUND

According
to the prosecutor's factual basis to support Bol's
plea of no contest, in December 2014, Bol got in a fight with
the victim. The fight occurred at the meatpacking plant where
they worked. Later, Bol's employer fired him. Bol went
home and returned to the plant with a handgun. Bol waited a
few hours for a shift change. While the victim was leaving
the plant, Bol approached him, supposedly to ask a question.
He then shot the victim several times in the torso and head.
The victim died at the scene.

Although
Bol focuses his assignments of error on the plea hearing, the
record includes Bol's motion to suppress statements that
he made at the scene and to an investigator for the county
sheriff during questioning at the jail. Bol claimed that his
statements were not freely and voluntarily made [294 Neb.
250] because the court did not properly inform him of his
constitutional rights.

Officers
responding at the scene wondered if Bol could speak English
because he never said a word. They learned that Bol was
Sudanese and tried to find an interpreter to come to the
jail. But when the investigator asked Bol during the booking
procedure if he understood English, he said yes. His native
language is Dinka Bor. The interpreter who came to the jail
appeared to know Bol or to know of him, and the sheriff's
office decided not to use him. Because Bol had answered
questions during the booking procedure in English, the
sheriff's office decided that an interpreter was
unnecessary. The booking procedure took 3 to 4 minutes.
Later, the investigator read Bol his Miranda rights,
had him sign a waiver form, and told him that if he did not
understand something, he needed to tell the investigator. Bol
said that he was willing to speak to the investigator. During
the 2-hour interview, Bol never said that he did not
understand a question.

Immigration
officials told the investigator that Bol came to the United
States in 2001 and became a lawful permanent resident in
2004. In addition to working in various meatpacking plants,
Bol obtained a commercial driver's license. The court
overruled the motion to suppress Bol's statements,
finding that Bol gave his consent freely and voluntarily.

At the
plea hearing, Bol's attorney stated that Bol had reached
a plea agreement with the State. In exchange for Bol's
plea of guilty or no contest to first degree murder, the
State agreed to dismiss the charge of using a weapon to
commit a felony. The court informed Bol that he would give up
the constitutional rights the court would next describe by
pleading guilty or no contest to the charges. The court
informed Bol that he had the right to (1) have a trial by a
jury of 12 persons or the judge alone; (2) be presumed
innocent; (3) have guilt proved beyond a reasonable doubt;
(4) have the court determine whether bond was appropriate;
(5) be represented by counsel at the county's expense if
he could not [294 Neb. 251] afford an attorney; (6) remain
silent and not testify, or testify if he wished; (7) have
witnesses against him testify and cross-examine them; (8)
call witnesses and present evidence; and (9) use the
court's subpoena power to compel a witness'
testimony. Conversely, the court explained that Bol still had
the right to counsel through sentencing and a direct appeal
but that he would likely waive any court error to that point
in the proceedings by entering a plea.

After
this explanation, the court asked Bol a series of questions
calling for yes or no answers. First, it asked Bol whether he
had a condition or illness, or had used any substance, that
would affect his ability to understand. Bol said no. After
Bol's attorney described the plea agreement, Bol
confirmed to the court that the stated agreement was correct
and that he was satisfied with his attorney's advice and
representation. Bol denied being compelled to comply with the
agreement. The following colloquy then occurred:

[Court]: Do you understand that if you plead guilty or no
contest to Count I in the amended information, which now
charges you with first-degree murder, a Class IA felony, you
will, in essence, be telling this Court that you committed
the crime described in Count I or at least you do not contest
the accuracy of the facts stated in Count I; do you
understand that?

[Bol]: No.

[Court]: Okay. What is it about that you don't
understand?

[Bol]: The process, the way it work.

[Court]: All right. Basically what's going to happen is
if you plead guilty or no contest, there will not be any
trial. What will happen is you are telling the Court that I
did that crime. Or you are saying I'm not going to agree
that I did that crime, but I am going to say that I'm not
going to contest it[.] I'm not going to argue against
anything that's said in Count I.

[Bol]: Well, yeah.

[294 Neb. 252] [Court]: Do you understand that?

[Bol]: Yeah. [Court]: Okay. In this particular case the State
has filed an amended information, that is, it has changed the
original information. The way they changed it is they have
dismissed the second count. That leaves one count only
against you. That count now charges you with first-degree
murder, which is a Class IA felony, . . . one of the most
serious levels of felony under Nebraska law.

. . . .

Do you understand that is the charge or count to which you
will be pleading guilty or no contest today?

[Bol]: Yes.

. . . .

[Court]: Now, did you hear my description of the rights that
you have under the constitution of the United States, the
constitution of the State of Nebraska and the laws of both?

[Bol]: Yes.

[Court]: Do you have any questions with regard to those
...

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